1 Fair Work Act 2009 s.319 - Application for an order relating to instruments covering new employer and non- transferring employees Respect Group Limited (AG2023/5052) Aged care industry COMMISSIONER MATHESON SYDNEY, 1 FEBRUARY 2024 Application for an order relating to instruments covering new employer and non-transferring employees [1] Respect Group Limited (Applicant) has made an application under s.319 of the Fair Work Act 2009 (Cth) (Act) seeking orders that the Sir William Hudson Memorial Centre, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2020 (Agreement) will cover non-transferring employees who: (a) are employed by the Applicant from 7 August 2023 at Hudson House in Cooma, New South Wales; and (b) will perform the same, or substantially the same work for the Applicant as transferring employees who are covered by the Agreement. [2] Sir William Hudson Memorial Centre Ltd (SWHMC) operated an aged care facility in Cooma, New South Wales. On 11 October 2021 the Agreement was approved by the Fair Work Commission (Commission) and commenced operation from 18 October 2021. On 7 August 2023, the Applicant became the operator of that aged care facility and the employees of SWHMC and who were covered by the Agreement transferred to the Applicant. The transferred employees continue to be covered by the Agreement pursuant to s.313 of the Act. The Applicant submits that it does not have an enterprise agreement covering non-transferring employees employed by the Applicant since the transfer of business with the effect that these employees will be covered by either the Aged Care Award 2010 (Aged Care Award) or Nurses Award 2020 (Nurses Award) (collectively referred to as Awards). [3] I issued Directions requiring the Applicant to serve a copy of those Directions, the application and accompanying documents on the non-transferring employees and any employee organisation covered by the Agreement and to file a statutory declaration confirming compliance with the Directions. [2024] FWC 271 DECISION [2024] FWC 271 2 Legislative framework [4] Section 319 of the Act provides: 319 Orders relating to instruments covering new employer and transferring employees Orders that the FWC may make (1) The FWC may make the following orders: (a) an order that a transferable instrument that would, or would be likely to, cover the new employer and a non-transferring employee because of paragraph 314(1) does not, or will not, cover the non-transferring employee; (b) an order that a transferable instrument that covers, or is likely to cover, the new employer, because of a provision of this Part, covers, or will cover, a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer; (c) an order than an enterprise agreement or a modern award that covers the new employer does not, or will not, cover a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer. Note: Orders may be made under paragraphs 1(b) and (c) in relation to a non- transferring employee who performs, or is likely to perform, the transferring work for the new employer, whether or not the non-transferring employee became employed by the new employer before or after the transferable instrument referred to in paragraph (1)(b) started to cover the new employer. Who may apply for an order (2) The FWC may make the order only on application by any of the following: (a) the new employer or a person who is likely to be the new employer; (b) a non-transferring employee who performs, or is likely to perform, the transferring work for the new employer; (c) if the application relates to an enterprise agreement--an employee organisation that is, or is likely to be, covered by the agreement; (d) if the application relates to a named employer award--an employee organisation that is entitled to represent the industrial interests of an employee referred to in paragraph (b). [2024] FWC 271 3 Matters that the FWC must take into account (3) In deciding whether to make the order, the FWC must take into account the following: (a) the views of: (i) the new employer or a person who is likely to be the new employer; and (ii) the employees who would be affected by the order; (b) whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment; (c) if the order relates to an enterprise agreement--the nominal expiry date of the agreement; (d) whether the transferable instrument would have a negative impact on the productivity of the new employer’s workplace; (e) whether the new employer would incur significant economic disadvantage as a result of the transferable instrument covering the new employer; (f) the degree of business synergy between the transferable instrument and any workplace instrument that already covers the new employer; (g) the public interest. Restriction on when order may come into operation (4) The order must not come into operation in relation to a particular transferring employee before the later of the following: (a) the time when the non-transferring employee starts to perform the transferring work for the new employer; (b) the day on which the order is made.” Section 319(3) considerations Section 319(3)(a)(i) - the views of the Applicant (new employer) [5] The Applicant is the new employer and supports the order sought. Section 319(3)(a)(ii) - the views of the employees who would be affected by the order [2024] FWC 271 4 [6] The Applicant submitted that since 7 August 2023 it has employed eight non- transferring employees who will be affected by the order. The Applicant submitted that it has consulted with these employees in relation to the application as well as the unions representing those employees. [7] I issued Directions requiring the Applicant to serve a copy of those Directions, the application and accompanying documents on the non-transferring employees and any employee organisation covered by the Agreement and to file a statutory declaration confirming compliance with the Directions. The Applicant did so. Those Directions provided the non- transferring employees with an opportunity to make any submissions in relation to the application. No submissions were received by the Commission in opposition to the application. Section 319(3)(b) - whether any employees would be disadvantaged by the order in relation to their terms and conditions of employment [8] The Applicant submits there will be no disadvantage to the non-transferring employees, including because if the orders are granted the non-transferring employees will be employed under the Agreement which has terms and conditions that are not disadvantageous and, on an overall basis, better than otherwise provided for in the Awards. Having considered the terms of the instruments I am satisfied that this is the case. Section 319(3)(c)- The nominal expiry date of the agreement [9] The Agreement has a nominal expiry date of 30 June 2024. Sections 319(3)(d), (e) and (f) – negative impact on productivity, significant economic disadvantage and degree of business synergy between instruments [10] The Applicant submits that there would be an administrative burden associated with applying two industrial instruments in respect of employees who are working at the one work site and who are performing the same work given there are differences between the Awards and Agreement. Section 318(3)(g) – the public interest [11] The Applicant submitted that it is in the public interest to grant the application because the Agreement has terms and conditions that, on an overall basis, are better than those in the Awards and the application is consistent with the objectives of the Act in that the interests of the non-transferring employees are safeguarded. [12] I am satisfied that it is not against the public interest to grant the orders sought by the Applicant. Conclusion [13] Having taken into account the considerations in s.319(3) of the Act, I consider that the following orders should be made: [2024] FWC 271 5 1. Pursuant to s.319(1)(b) of the Fair Work Act 2009 (Cth), the Commission orders that the Sir William Hudson Memorial Centre, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2020 will cover non-transferring employees who: (a) are employed by Respect Group Limited T/A Respect Aged Care from 7 August 2023 at Hudson House in Cooma, New South Wales; and (b) will perform the same, or substantially the same, work for Respect Group Limited T/A Respect Aged Care as transferring employees who are covered by the Sir William Hudson Memorial Centre, NSWNMA, ANMF NSW Branch and HSU New South Wales Branch Enterprise Agreement 2020. 2. Pursuant to s.319(4) of the Fair Work Act 2009 (Cth), order 1 comes into effect at the later of: (a) the time when the non-transferring employee starts to perform the transferring work for Respect Group Limited T/A Respect Aged Care; (b) the date of this order. [14] The order [PR770855] will be issued in conjunction with this decision. COMMISSIONER Printed by authority of the Commonwealth Government Printer <AE513451 PR770854>